personal injury compensation
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Accident victim duty to mitigate loss

Obligation on accident victim

Where an individual decides to take a personal injuries action they are under a legal duty to minimise the amount of losses incurred. This duty is known as mitigation of loss.

The obligation on Plaintiffs (victim) to avoid unnecessary losses is set out in law in the Civil Liability and Courts Act, 1961. The reasoning behind this is that it would be unfair for the Defendant to be held liable for costs which could have been reasonably avoided. The duty to mitigate relates to both general damages for pain and suffering and special damages for actual financial losses incurred.

Examples of Mitigation of Loss

  • Returning to work as soon as practicable to reduce loss of earnings
  • Attending relevant medical appointments
  • Doing rehabilitative exercises to expedite recovery (if recommended)
  • Avoiding unnecessary expenditure where possible

Failure to Mitigate

The onus of proof is on the Defendant to show that the Plaintiff acted unreasonably in the incurring of additional losses. Where a Plaintiff is found to have negligently or carelessly failed to mitigate their losses, this will be deemed contributory negligence and they will be held responsible for an appropriate portion of losses incurred. The judge will review the additional losses caused by the failure to mitigate and will reduce damages accordingly.

Plaintiff on illness benefit

It is incorrect to assume that payment of illness benefit by Social Welfare means that the Plaintiff (victim) remains genuinely unfit to work of any kind. In personal injury case it will be separately verified (separate to how Social Welfare is or may verify if a person is really sick and unfit to work) whether Plaintiff is fit to resume employment. You  should also get proper legal advice how you shall be making attempt to return to other type of employment, maybe to obtain new qualification or skill and how you may get financial support for that.

Polish Lawyers and Solicitors in Dublin
| jbadmin | 0 Comments | Legal Issues, Litigation | , , , ,

Road Traffic Accident with uninsured or unknown driver

What happens if I am hit by an uninsured or untraceable driver?

When you are involved in a road traffic accident you would hope that the responsible party would stop at the scene and you would exchange contact and valid insurance details. However, this is not always the case and if you have been involved in an accident resulting in material damage or personal injuries by a driver that is either uninsured or untraceable you may be unsure of how to proceed.

MIBI

The Motor Insurers’ Bureau of Ireland (MIBI) was established by the government in 1955 and is currently regulated by the 2009 Agreement. Their main objective is to compensate victims of road traffic accidents caused by uninsured and unidentified vehicles.

What MIBI can help with

In respect of uninsured drivers, the MIBI Agreement provides for the following;

  • Payment of compensation for personal injury claims in respect of road traffic accidents caused by uninsured vehicles.
  • Payment of compensation of vehicle/property claims where the alleged offending vehicle can be identified by means of a valid registration plate.
  • Where the vehicle cannot be identified, the MIBI has no liability to pay compensation for vehicle/property damage except in circumstances where there are significant personal injuries arising from the same accident.

In respect of unidentified drivers, the MIBI Agreement provides for the following;

  • Payment of compensation for personal injury claims in respect of road traffic accidents caused by unidentified vehicles.
  • Agreement does not extend to vehicle or property damage caused by unidentified vehicles unless very serious injuries have also been sustained in the same accident.

What you should do

If you have been involved in a road traffic accident caused by an uninsured or unidentified driver it is important to get as many details as you can from the scene and contact a Solicitor as soon as possible. The Solicitor will be able to advise the appropriate course of action which may include making a claim to the MIBI.

 

personal injury letter of claim
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Less Time for personal injury victim to start the case

Responsibility on Injured Party

Irish law places an obligation on a party initiating proceedings in respect of personal injuries to send a letter of claim in advance of the litigation. This letter sets out the basis of the alleged wrong and gives the Defendant an opportunity to admit liability. In reality, the function of this letter is to notify the defending parting that proceedings may be imminent.

Since 2004 the law has allowed the proposed Plaintiff a period of two months to serve a letter of claim, beginning from the date of the cause of action. If the Plaintiff failed to deliver the letter within such a period, ‘the court hearing the action may’ per Section 8 of the Civil Liability and Courts Act 2004

‘’ (a) draw such inferences from the failure as appear proper, and
(b) where the interests of justice so require—
(i) make no order as to the payment of costs to the plaintiff, or
(ii) deduct such amount from the costs that would, but for this section, be payable to the plaintiff as it considers appropriate. ’’

The Amendment

As of the 19th of June 2019, Court rules now stipulate that the proposed Plaintiff has a period of one month only from the date of the cause of action in order to send the letter of claim. This places a greater responsibility on parties seeking to initiate a claim not to delay matters at the initial stages. Inferences can be drawn from a failure to serve the letter within one month or as soon as practicable thereafter and there can be financial consequences at the conclusion of the matter in respect of the awarding of costs.

The other significant aspect of this amendment is that under the previous legislation it stated that the Court ‘may’ consider the failure whereas under the new legislation it is stated the court ‘shall’ consider the failure, therefore the judicial discretion in this regard has been removed.

Consequences

The consequence of this amendment for Plaintiffs is that a failure to serve a letter of claim on the Defendant within one month will certainly be considered at the conclusion of the matter in the awarding of costs. Of course, if there is a legitimate reason for the delay the judge will take this into consideration but this does not remove the possibility that the Judge will either make no order as to the payment of costs or deduct certain amounts from the Plaintiffs costs.

What does this mean for personal injury victim? If you have suffered personal injury and intend on proceeding with a claim, it is very important that you do not delay in coming to your Solicitor after the injury occurs so that there is sufficient time to consider the merits of your case and if appropriate, deliver a letter of claim to the relevant parties in a timely fashion.

Important

Do not confuse a period of two years that injured party in general have to claim compensation for personal injury before their claim becomes statute barred. You still have that two year time limit to claim but there are potential financial consequences if a letter of claim is not sent within one month  from the date of accident/injury.